HKSAR v. LEE WAI HUNG, WILLIAM

HCMA 677/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 677 OF 1999

(ON APPEAL FROM TWS 4605/1999)

-------------------------

----------------------

J U D G M E N T

----------------------

1. The grant of legal aid in this case was proper because the appeal was not unmeritorious. What caused concern to the Appellant's legal representative was the fact that PW1 had admitted to a police officer that, at the time of the accident, he had not paid attention to the fact that there was a vehicle approaching him from his left, and also the observations by the trial Magistrate that he was of the view that if PW1 had paid attention, possibly he could have avoided the Appellant's vehicle and could have avoided the accident.

2. Miss Lee, for the Appellant, has submitted certain grounds, one of which was that looking at the photographs, it was improbable that the damage done to the Appellant's vehicle should have gone from the rear of the vehicle towards the front, and she submitted that it should have been the other way round. In my view, it is very difficult to try and work out what happened during the incident by just looking at the photographs of damage to vehicles. Miss Lee also submitted that PW1 had a conviction for careless driving, and because the Appellant was unrepresented at the trial, this fact was not drawn to the attention of the trial Magistrate. My view is that with an offence like careless driving, it matters little whether the prosecution witness has or has no conviction for the offence. She also made the point that the Appellant had a clear record, and may be because he was unrepresented, this was not made known to the trial Magistrate to enable the trial Magistrate to consider that when assessing his reliability as a witness.

3. The crux of the whole matter is : how did the accident occur? The accident had occurred in a carpark of a container terminal company. PW1 was driving a goods vehicle on the wrong side of the carriageway - he was on the wrong side because he was initially parked on the wrong side and had moved forward with a view to reversing into an empty parking bay. As he was moving forward, the Appellant's container truck cut across his path and collided with him. The Appellant had been on the right side of the carriageway and because there were vehicles parked in front of him which obstructed him, he decided to overtake those parked vehicles by crossing across the central dividing line onto the opposite carriageway.

4. PW1's evidence was that at the time of impact, his vehicle was still moving forward albeit slowly. My view is he was entitled not to bring his vehicle to a stop because even though he was on the wrong side of the carriageway, there were no vehicles approaching him from the opposite direction. The Appellant, on the other hand, at the point of impact, was on the wrong side of the carriageway. It may be that just before the collision, he had misapprehended the situation and thought that PW1 would stop his own vehicle to enable him, the Appellant, to pass the parked vehicles on the other side of the carriageway.

5. This was a rather minor collision, but at the end of the day because there was a prosecution, the Court has to consider which driver had the right of way and was entitled not to give way to the other driver. My view is PW1 was entitled to expect the Appellant to ensure that the road was clear before crossing onto the opposite side of the carriageway, and because he did not, the Magistrate was correct to have found him guilty of careless driving, so the appeal has to be dismissed.